Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Key facts of the case:
Request for a preliminary ruling from the Curtea de Apel Braşov.
Reference for a preliminary ruling – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive (EU) 2015/849 – Directive 2005/60/EC – Offence of money laundering – Laundering by the perpetrator of the predicate offence (‘self-laundering’).
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
Article 1(2)(a) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding national legislation which provides that the offence of money laundering, within the meaning of that provision, may be committed by the perpetrator of the criminal activity from which the money concerned was derived.
73) In so far as the referring court is unsure whether, in essence, such an interpretation might be incompatible with the principle non bis in idem, it should be recalled that, under Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the provisions of the Charter are addressed to the institutions of the European Union and to the Member States when they are implementing EU law.
74) It should also be borne in mind that the principle non bis in idem is enshrined in Article 4 of Protocol No 7 to the ECHR and in Article 50 of the Charter, which provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’.
75) Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, for as long as the Union has not acceded to it, a legal instrument which has been formally incorporated into EU law. According to the explanations relating to Article 52 of the Charter, Article 52(3) thereof is intended to ensure the necessary consistency between the Charter and the ECHR, ‘without thereby adversely affecting the autonomy of Union law and … that of the Court of Justice of the European Union’ (judgment of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraphs 24 and 25 and the case-law cited).
76) Accordingly, the examination of the question referred must be undertaken in the light of the fundamental rights guaranteed by the Charter and, in particular, of Article 50 thereof (judgment of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 26 and the case-law cited).
77) It follows from the very wording of Article 50 of the Charter that it prohibits prosecuting or imposing criminal sanctions on the same person more than once for the same offence (judgments of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 18, and of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 36).
78) As regards, in particular, the prohibition against prosecuting a person for the same offence (the ‘idem’ condition), according to the Court’s case-law, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which resulted in the final acquittal or conviction of the person concerned. Therefore, Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties at the conclusion of different proceedings brought for those purposes (see judgments of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 35, and of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 37 and the case-law cited).
80) Moreover, the legal classification, under national law, of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another (judgments of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 36, and of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 38).
81) It must therefore be held that Article 50 of the Charter does not preclude the perpetrator of the predicate offence from being prosecuted for the offence of money laundering referred to in Article 1(2)(a) of Directive 2005/60 where the facts in respect of which the prosecution is brought are not identical to those constituting the predicate offence, and the issue of whether those material facts are identical is to be assessed in the light of the criterion set out in paragraphs 78 to 80 above.
83) Lastly, it should be borne in mind that, when applying Article 29(1)(a) of Law No 656/2002, the referring court must ensure that the principle non bis in idem, as well as all of the relevant principles and fundamental rights guaranteed by the Charter to the accused persons in the main proceedings, are respected (see, to that effect, inter alia, judgments of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 53, and of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 68), in particular the principle that offences and penalties must be defined by law (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 52) and the principle of proportionality of penalties enshrined in Article 49 of the Charter.
84) In the case in the main proceedings, it is for the referring court to examine whether Article 50 of the Charter is applicable and, accordingly, to determine whether the predicate offence was the subject of criminal proceedings in which the perpetrator was finally acquitted or convicted. In the present case, it is the referring court which must examine whether the closure of the criminal proceedings in respect of the predicate offence resulted in a final acquittal or conviction.
85) In order to ensure that Article 50 of the Charter is observed, the referring court must satisfy itself that the material facts constituting the predicate offence, namely tax evasion, are not identical to those that led to the prosecution brought against LG under Article 29(1)(a) of Law No 656/2002, taking into account the considerations set out in paragraphs 78 to 80 above. There would be no infringement of the principle non bis in idem if it is found that the facts which led to the criminal proceedings against LG for money laundering under Article 29(1)(a) of Law No 656/2002 are not identical to those constituting the predicate offence of tax evasion, as it appears from the documents before the Court.